Prop. 120 would give AZ 'control' of US lands

PHOENIX - Arizona really can force the federal government to surrender title to close 73 million acres of land in the state, the chief proponent of the ballot proposition insists.
But others who support Proposition 120 concede that even with voter approval it may be a legally ineffective measure, as the likelihood of Congress agreeing is virtually nil.
Still, they say there is a good reason for Arizona voters to declare sovereignty over all that federal land, and it could make a difference, even without congressional action, by forcing federal agencies to be more responsive to requests to make use of those public lands.
However, the measure ran into a wall of opposition largely from the environmental community fearful of the management practices of state agencies reporting to state elected officials.
On paper the idea behind Proposition 120 is simple. It would add a section to the Arizona Constitution declaring the "sovereign and exclusive authority over the air, water, public lands, minerals, wildlife and other natural resources within its border."
Central to the idea is frustration with federal management of its lands within the state.
Rep. Chester Crandell, R-Heber, sponsor of the legislation that put the issue on the ballot, said a prime example has been the forests.
"We had a thriving forest industry back in the '70s and '80s," he said, with timber companies harvesting logs on federal lands. "That's when all the (environmental) lawsuits started."
That, in turn, led to a reticence of federal agencies to allow logging projects, or even forest thinning. The result, Crandell said, has been huge wildfires that devastated large portions of the state.
"And what have we accomplished?" he continued. "We've burned up the habitat of the spotted owl and the goshawk as well."
Jim Klinker, chief administrative officer of the Arizona Farm Bureau, sees it in more basic terms.
"Those forests should have been thinned. We should have had timbering out there. We should encourage grazing on those lands, put ranchers out there to manage it, put foresters out there to manage these lands working with these federal agencies," he said. "But that has broken down."
And that gets to the essence of Klinker's complaint.
He said groups that seek to do something on federal lands, like grazing, used to be able to work with federal employees on the ground in Arizona. They could get quick answers, which is no longer the case.
"There's little response, if you will, from the federal agencies," he said.
"It seems to get worse and worse," Klinker said. "The bureaucracy that dictates from Washington, D.C., to the Forest Service and BLM land is just getting so bureaucratic you can't get anything done on the ground."
Beyond concerns about how state agencies would manage the lands, Steve Arnquist of the Arizona League of Conservation Voters said, there are more practical arguments against the measure.
One is that it makes no sense to let each of the 50 states have its own set of environmental rules and regulations, and not have a baseline safe level of clean air and clean water, he said.
"Let's say one state has a more aggressive Clean Air Act standard than the state next to it," he said. "But the air doesn't know when to stay in the state."
And he rejected arguments that there may be legitimate reasons to let states set some of their own environmental regulations, such as for dust control, which is different in the desert than it might be back East.
"I would respond to that that human lungs are the same in all the states," Arnquist said.
"We know what the maximum levels of certain pollutants are before it starts making people sick," he said. "And that's the same whether you're in Pennsylvania or you're in Arizona."
Perhaps the bigger question is whether Arizona could actually manage all those federal lands when, Arnquist noted, the state has struggled just to keep its parks open.
Gov. Jan Brewer agrees.
Brewer said while she shares the frustration over how the state's natural resources are being managed, this is not the answer. Brewer vetoed an early legislative attempt to take control of federal lands.
She said if the federal government were to somehow accede to the demand, the state is totally unprepared to take over almost 73 million acres of federal land.
Crandell said Arizona could manage all those lands, collecting the fees and using them to help balance the state budget and keep taxes low.
Klinker, however, has his doubts.
"I don't think these lands could be turned over overnight to the states," he said. "But there could be a system in place that moved more decision making back here to the local level."
And that, from Klinker's perspective, could be the best possible outcome, especially with the belief that the vote would be largely symbolic.
link

Livestock Payments May Change

One branch of the federal government, the Agriculture Department’s Wildlife Services, set traps in the northern edge of the Gila National Forest last week in a frustrating, monthlong effort to capture the elusive alpha female of the Fox Mountain wolf pack, blamed for a string of recent livestock kills.

Meanwhile, officials in another agency, the U.S. Fish and Wildlife Service, fretted over the difficult decision to impound the wolf, one of an official count of 58 in New Mexico and Arizona.

The tug of war over what to do with the Fox Mountain wolf has illustrated again the deep divide that has plagued the recovery of the endangered Mexican gray wolf.

On one hand, conservationists want a native predator that was nearly hunted to extinction restored to the landscape under the Endangered Species Act; on the other, critics, dominated by the livestock industry, argue the lobos are a menace that take a bite out of their pocketbooks by killing cows and other livestock.

Now, the Fish and Wildlife Service appears poised to endorse a new approach, dubbed coexistence, aimed at creating more tolerance for lobos in the ranching community.

Details won’t be released until next month at the earliest. However, according to a broad outline provided by people familiar with the plan, it would do this: Rather than compensate ranchers for confirmed wolf kills of livestock, the program would pay ranchers and those who own property in wolf country, based on a formula that would take into account a number of factors, such as the proximity of a wolf pack, the number of livestock exposed to the threat of wolves, a ranchers’ willingness to take steps to reduce wolf-livestock conflicts and the growth of the wild wolf population.

The idea of shifting to a new way of compensating ranchers in wolf country is, in part, a recognition that ranchers sustain losses for which they are not compensated, for instance, cattle that disappear or stressed cattle, said Craig Miller, Southwestern representative of Defenders of Wildlife and a member of the Mexican Wolf Interdiction Fund Stakeholders Council. The Council makes recommendations on how much to pay ranchers for livestock killed by wolves, with payments from a privately managed fund financed by Defenders and the federal government.

A baseline payment, of a still undetermined amount, would recognize that “there are costs of living in the presence of wolves,” Miller said. “The program is trying to get away from postmortem compensation. That begins with dead livestock and ends with dead wolves.”

As Miller envisions it, Arizona-based Defenders of Wildlife would continue, as it does now, to provide funds to ranchers for measures aimed at avoiding wolf-livestock conflicts, such as hiring range riders to guard herds, moving cattle to pastures away from wolf dens, or the purchase of hay. According to Miller, ranchers could be paid to take steps to reduce conflicts with wolves, and then be rewarded when those measures result in the growth of the wolf population.

“It’s trying to get cooperation on both sides,” said Sherry Barrett, wolf recovery program coordinator for the Fish and Wildlife Service. “There’s a lot of emotion around wolves, both pro and con. … So we are trying to find something that reduces some of this conflict.”

A key part of the plan — securing a big enough pot of money to pay ranchers an amount that would allay concerns about cattle losses — has yet to be accomplished. Money in the existing Interdiction Fund managed by a Washington, D.C.-based nonprofit group can only be used to pay ranchers for livestock losses.

To succeed, the plan would have to be embraced by the livestock industry, and several ranchers in Arizona and New Mexico said this week that they knew little or nothing about it. Laura Schneberger, president of the Gila Livestock Growers Association, said she doubted such a program would work for small ranchers who are less able to endure wolf depredations.

In the case of the Fox Mountain packs’ cattle depredations, ranchers called for wolf removals, while hundreds of wolf supporters pushed back against the initial kill order issued Aug. 8. Many wolf advocates celebrated when the kill order was rescinded two days later, after permanent housing for the wolf was secured in an Arizona sanctuary, while others maintained that the wolf should be allowed to remain free.

Before a few wolves were reintroduced to the wild in 1998, federal officials projected there would be about 100 wolves in the forests of southwestern New Mexico and southeastern Arizona by the end of 2006. As of January, the official population count was 58.

Illegal poaching and the removal of wolves in earlier years for cattle depredations have been major factors in keeping down the number of wild-roaming lobos.

The desire to respond to rancher concerns was, in no small measure, what motivated Fish and Wildlife to exercise the discretion it has to manage, or remove, a “problem” wolf that repeatedly preys on livestock, Barrett acknowledged.

Whether a new approach to compensating ranchers for living with wolves is enough to bridge old divides is far from certain. Just in the past week, an online petition was launched that calls for blocking new releases of wolves and, eventually, the removal of wolves from the Southwest.

“I suspect we’ll get backlash from all sides,” Barrett said. “I’ve never seen a plan that didn’t get backlash, but what we are doing is trying to find a middle ground.”

Meanwhile, one freedom-loving lobo continues trying to steer clear of traps.

UpFront is a daily front-page news and opinion column. Comment directly to Rene Romo in Las Cruces at rromo@abqjournal.com or 575-526-4462. Go to ABQjournal.com/letters/new to submit a letter to the editor.

link

Hage Forage Right Trial Ends With BLM and U.S. Forest Service Employees Found in Contempt

 FOR IMMEDIATE RELEASE                                                                     Sept. 4, 2012

RENO, NV—Friday, August 31, a weeklong show-cause hearing ended with Chief Federal District Court Judge Robert C. Jones finding Tonopah Bureau of Land Management (BLM) manager Tom Seley and Humboldt-Toiyabe National Forest Service ranger (USFS) Steve Williams in contempt of court. The contempt, including witness intimidation, occurred during the pendency of the five-year-old forage right case, U.S. v. Estate of E. Wayne Hage and Wayne N. Hage. 

            Seley was specifically found having intent to destroy the Hages’ property and business interests. “Mr. Seley can no longer be an administrator in this BLM district. I don’t trust him to be unbiased. Nor can he supervise anybody in this district,” the judge stated in his order from the bench.

            The contempt finding was the result of the USFS and BLM having filed suit against Wayne N. Hage and the Estate of E. Wayne Hage in 2007 but then also seeking alternative remedies while the case was pending in derogation of the court’s jurisdiction. 

            “The problem is Mr. Seley especially, and to a lesser extent, Mr. Williams...had to kill the business of Mr. Hage. They had to stop him in any way possible,” the judge noted as the motive for their contemptuous actions. “My problem was that you were seeking remedy outside this court,” he added.

            The court noted, “You got a random draw of a judge. You submitted to this civil process.” Then, Seley and Williams pursued their own remedies by trying to extort money out of third-party ranchers who had leased cattle to Wayne N. Hage. They issued trespass notices, demands for payments, their own judgments, and in one instance coerced a $15,000 settlement. All of this was done during the time the court had jurisdiction over these issues.

            Counts against Seley and Williams included filing on top of the Hages’ vested and certificated stockwater rights with intent of converting those rights to a new permittee; sending 75 solicitations for 10-year grazing permits in the Ralston allotment aiming to destroy the Hages’ grazing preferences and water rights; issuing temporary permits to third parties, in particular Gary Snow of Fallon, Nev., with the knowledge that Snow’s cattle would drink the waters belonging to the Hage family; and, finally, the assessment of fines, penalties and judgments on third parties whose cattle were under the legal possession of Wayne N. Hage.

            Judge Jones remarked about the July 26 Federal Circuit Court of Appeals’ ruling in the parallel constitutional Fifth Amendment takings case, U.S. v. Hage. The court expressly said the Hages have “an access right” to their waters. He also noted that the court did not overturn any of the Hages’ property rights that the Court of Claims found the Hages to own. Also, the takings that were overturned were overturned on the basis that the claims were not ripe, not because the government was acting correctly.

            The hearing began Monday, August 27, with a cadre of agency heads from Washington, D.C., regional and state offices turning up in Reno to defend their policies and employees in court. After intense questioning by the court, Judge Jones made witness credibility findings in which USFS Region 4 Director Harv Forsgren was found lying to the court, and Nevada head of the USFS, Jeanne Higgins, was not entirely truthful.  After those findings, several other named witnesses did not testify.

            In his bench ruling Friday night, Judge Jones stated: “The most persuasive testimony of anybody was Mr. Forsgren. I asked him has there been a decline in AUMs [animal unit months/livestock numbers] in the West. Then I asked him has there been a decline in the region, or this district. He said he doesn’t know. He was prevaricating. His answer speaks volumes about his intent and his directives to Mr. Williams.” The court noted that anybody who is school age or older knows “the history of the Forest Service in seeking reductions in AUMs and even an elimination of cattle grazing during the last four decades. Not so much with the BLM—they have learned that in the last two decades.”

            In his findings of witness intimidation, Judge Jones noted: “Their threats were not idle.  They threatened one witness’s father’s [grazing] allotment.” The judge referenced testimony wherein Steve Williams delivered trespass notices accompanied by an armed employee. In one instance the armed man snuck up behind one of the witnesses with his hands ready to draw his guns. “Packing a gun shows intent,” the court noted.

            In explaining the findings to Seley and Williams, the court found there was “intent to deprive this court of jurisdiction by intimidation of witnesses and threats against witnesses.” He added, “Where you crossed the line is you took civil action yourself in order to kill the business of Hage.”

            Seley and Williams were held personally liable for damages totaling over $33,000 should the BLM and USFS fail to fund the losses to Hage and third parties. In addition, Judge Jones imposed an injunction wherein the BLM and USFS are prevented from interfering with third-party leasing relationships when the livestock are in the clear operational control of Wayne N. Hage. The judge ordered Hage to reapply for a grazing permit and ordered the federal government to immediately issue permits to the Hages for the winter grazing season on the Ralston allotment.

            The judge said he had already written 100 pages of his final decision from the main trial ending June 6. He indicated his published decision should be forthcoming in early October. Wayne N. Hage represented himself, pro se, and Mark Pollot, a Boise, Idaho, attorney, represented the Estate.

‘Sagebrush rebellion’ case overturned

SAN FRANCISCO — America’s sagebrush rebellion has suffered a major setback far from the western rangeland where a modern battle was joined over grazing rights on public lands. Over the past 21 years, firebrand Nevada rancher Wayne Hage and his survivors waged a legal war against federal land managers who were seeking to restrict cattle grazing on public lands and became a heroic symbol for those who yearned for bygone days and bridled at the growing reach of government. Then in a little noticed decision on July 26, a three-judge panel of the Federal Circuit Court of Appeals in Washington, D.C., overturned Hage’s hard-fought multi-million-dollar legal victories. It was a quiet rebuke to a legal saga that began in 1991 after the government impounded some of Hage’s cattle. The rancher had defied grazing restrictions in Nevada’s Humboldt-Toiyabe National Forest, and refused to pay fines for grazing permit violations. Challenging the government in court was a costly and time-consuming endeavor that Hage threw everything he had at, including the ranch for which he was fighting. With his ranch house stuffed full of legal tomes as he became immersed in the case, the suit-clad, salt-and-pepper-bearded Hage became the epitome of the sagebrush rebel — the ideological forefathers of today’s tea party — and breathed life into a movement that captured the rebel spirit of the Old West. “Hage is a hero in the sagebrush rebellion. He bet the ranch, literally and deliberately, because he believed passionately in this cause,” said Jon Christensen, executive director of Stanford University’s Bill Lane Center for the American West. “The tragedy is that so much intelligence, creative passion and love for the West ... were wasted on such a doomed dead end,” he said. After his cattle were seized, Hage and his wife Jean filed suit, saying the government’s denial of his rights to freely graze on public lands threatened his livelihood. Hage said ranchers like him had worked the land for more than a century, and should be allowed to continue. In 2008, U.S. Claims Court Judge Loren Smith agreed, saying Hage’s rights had been violated, and ordered the government to pay the rancher’s family $4.4 million, a ruling that has now been tossed out. But Margaret Byfield, Hage’s daughter, said from her home in Georgetown, Texas, that the family has until Sept. 10 to file for a rehearing and they plan to do it. “We are not surprised by this decision. Sitting through the appellate court hearings, we could tell which way the judges were headed,” she said. “There was a lack of understanding of western law and how the western lands function.” At issue before the courts was whether private ranchers have a constitutionally protected ownership stake in public lands, and whether federal overseers of those lands — in this case the U.S. Forest Service and BLM — illegally stripped the ranchers of that property. Government land managers, enforcing environmental laws meant to improve conservation and public access to these lands, have curtailed unfettered grazing through issuing permits that regulate the number of cattle allowed in an area. Judge Smith ruled that the government illegally “took” Hage’s rights to graze on public lands by blocking his access to water. Wayne Hage died in 2006; Jean in 1996. His estate was awarded the damages. “If Hage’s case had succeeded, it would have been virtually impossible for public land managers to control private ranchers’ use of western public lands for cattle grazing,” said John Echeverria, a professor of law at Vermont Law School who filed “friend of the court” briefs in opposition to Hage. “This would have made it far more difficult to maintain the public’s lands in a healthy state and make them available for a wide variety of public uses, including hunting, fishing, hiking and other forms of recreation,” Echeverria said. Bureau of Land Management Nevada spokeswoman JoLynn Worley said the office could not comment on the ruling because of a related, ongoing trespassing case involving the Hage family. In the separate but related proceeding, a district court judge in Reno, Nev. on Friday indicated the Hage family and others are not guilty of trespassing on public lands, and that he intends to find federal rangers in contempt for issuing trespass notices while his court was still deciding the case. Even though the long-running legal saga has turned against the ranchers, those who fought alongside Hage said the sagebrush rebellion lives on, albeit with a different tone. “I think the fight’s going to continue, but it’s not a rebellion anymore,” said Fred Kelly Grant, a former federal prosecutor and private property advocate who helped Hage’s family with the case. Grant and Hage’s family now advocates not for “rebellion” but “cooperation,” a theory that the federal government is compelled by law to work more closely with states and counties when revising public lands policy. Hage’s daughter offers $1,500, eight-hour courses on how to implement the coordination strategy, a concept that has become popular with tea partyers and other states’ rights political movements. In the coordination movement, the sagebrush rebellion lives, Grant said. “As long as there are people in the rural West, the battle between those people and those who would have them off the land is going to go on.” link